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CR.A/136/2005 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 136 of 2005
For
Approval and Signature:
HONOURABLE MR.
JUSTICE A. L. DAVE
HONOURABLE
MR. JUSTICE J. C. UPADHYAYA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
NARENDRA
PALABHAI MAKWANA & Another.
Versus
STATE
OF GUJARAT.
=========================================
Appearance :
Mr
MRUGEN K PUROHIT for the Appellants.
Mr UR BHATT, APP, for the
Respondent.
=========================================
CORAM
:
HON'BLE
MR. JUSTICE A. L. DAVE
and
HON'BLE
MR. JUSTICE J. C. UPADHYAYA
Date
: 22/10/2008
ORAL
JUDGMENT
:- (
Per :A. L. DAVE, J.)
1. The
appellants were the accused before Sessions Court, Rajkot, at Gondal,
in Sessions Case No.42 of 2003. Appellant No.1, Narendra Palabhai
Makwana, happened be the husband of Ramaben and appellant No.2,
Kunverben, is his mother. They both were charged for offences
punishable under Sections 306 and 498A read with Section 114 of the
Indian Penal Code. Appellant 1 came to be convicted for the offence
punishable under Section 306 read with Section 114 of the I. P. C.
and was sentenced to undergo rigorous imprisonment for ten years and
to pay a fine of Rs.1,000/-, in default, to undergo simple
imprisonment for three months. He was also convicted for the offence
punishable under Section 498A read with Section 114 of the I. P. C.
and sentenced to rigorous imprisonment for three years and to pay a
fine of Rs.500/-, in default, to undergo simple imprisonment for 15
days. Accused No.2, Kunverben, was convicted for the offence
punishable under Section 306 read with section 114 of the I. P. C.
and sentenced to undergo rigorous imprisonment for two years and to
pay a fine of Rs.500/-, in default, to undergo simple imprisonment
for three months. She was also convicted for the offence punishable
under Section 498A read with Section 114 of the I. P. C. and
sentenced to undergo rigorous imprisonment for two years and to pay a
fine of Rs.500/-, in default, to undergo simple imprisonment for
three months. All the sentences were ordered to run concurrently.
The judgment was delivered on 30th December, 2004 by 4th
Fast Track Court, Gondal.
2. The
facts of the case, in brief, are that on 12th January,
2003, Ramaben, deceased wife of appellant No.1-Narendra suffered
burns injuries at her home and succumbed thereto. She was taken to
hospital at Upleta, where she gave a history that she had suffered
burns while she was heating milk. She lodged an F. I. R. (Exhibit
51) before Police and, in that F. I. R. also, she gave the history
that while she was heating milk for her son, Umesh, on Primus, she
accidentally suffered burns injuries. She was then taken to Junagadh
Hospital, where also she gave the history of accidental burns in the
same manner. Her dying declaration was recorded by Executive
Magistrate (Exhibit 58) and, in that dying declaration also, she gave
the history that while she was heating milk on Primus, she suffered
accidental burns as her sari caught fire. Later on, when her parents
arrived, they disclosed to the police of the burns being homicidal
and, at that time, she was alive and, therefore, it was indicated
that an offence punishable under Section 307 is constituted. Later
on, when she died, it would of course amount to an offence punishable
under Section 302 of the Indian Penal Code. However, the police
after investigation filed charge sheet in the Court of learned
Judicial Magistrate, First Class, Upleta, for the offences punishable
under Sections 498A, 306 and 114 of the Indian Penal Code.
2.1 The
case was committed to the Court of Sessions and charge was framed
against the accused persons at Exhibit 1, to which they pleaded not
guilty and came to be tried.
2.2 Considering
the evidence, the Trial Court found that the charges levelled against
the accused persons were proved and, therefore, recorded conviction
and passed sentences, as stated hereinabove.
3. We
have heard learned Advocate, Mr. Purohit, for the appellant and
learned Additional Public Prosecutor, Mr. Bhatt, for the
respondent-State. We have also examined the record and proceedings.
4. We
notice from the evidence that the marriage span between the
accused-appellant No.1 and the deceased was of more than seven years
and, therefore, the presumption clause will not come into play. We
do not propose to discuss the bulk evidence, which is recorded by the
prosecution in detail since we find that this is a gross case of
miscarriage of justice.
5. Undisputedly,
the victim, deceased-Ramaben, in her initial versions before hospital
at Dhoraji, hospital at Junagadh, F.I.R. before police and dying
declaration before Executive Magistrate, was consistent that she had
suffered accidental burns.
5.1 Later
on, the parents and relatives of the deceased have tried to project
the case as if it was a case of attempted murder or murder.
5.2 Later
on, during the course of investigation, the Investigating Agency has
found that the allegation of attempted murder or murder is not true
nor is the version given by the deceased is true and, therefore,
filed a charge sheet for offences punishable under Sections 306 and
498A read with Section 114 of the I.P.C. Now, if the evidence of
the Investigating Officer is seen, his deposition is at Exhibit 59.
He is Somabhai Mohanbhai Patel, who has investigated the case. In
his cross-examination, he states that he had not received any
material during the investigation to show that Ramaben had committed
suicide. He also admits that he had not received any material during
the course of investigation that any physical or mental harassment
was caused to the deceased by her husband, Narendra, or
mother-in-law, Kunverben.
5.3 If
above is the situation, we are at loss to understand how the
Investigating Officer has filed charge sheet for offences punishable
under Section 306 and 498A read with Section 114 of the I. P. C.
against the accused-appellants.
6. The
picture that emerges, therefore, is that, according to the deceased,
she suffered accidental burns. According to her parents, it was a
case of murder and that she was set ablaze by pouring kerosene by the
accused persons. Both these versions are not accepted by the
Investigating Officer and the Investigating Officer files charge
sheet for offences punishable under Sections 306 and 498A read with
Section 114 of the I. P. C. and he admits that he got no evidence to
conclude that the deceased was meted out with any physical or mental
torture or harassment or that she committed suicide. In light of the
above situation, we are of the view that it is highly risky to
confirm the confirmation recorded by the Trial Court and it deserves
to be set aside.
7. In
the result, the appeal is allowed. The judgment and order of
conviction and sentence recorded by the Trial Court is hereby set
aside. Appellant No.1 be set at liberty forthwith, if not required
in any other case. Appellant No.2 is on bail and her bail bond shall
stand cancelled. Fine, if paid, be refunded to the appellants.
[
A. L. DAVE, J. ]
[ J. C. UPADHYAY, J. ]
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